STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT G. HARRISON, )

)

Petitioner, )

)

vs. ) CASE NO. 94-794

) BEARD EQUIPMENT COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly-designated Hearing Officer, Diane Cleavinger, on October 26, 1994, in Panama City, Florida.

APPEARANCES

For Petitioner: Robert G. Harrison, Pro Se /1

c/o Ms. Ramona McKenna

291 Hill Street

Coventry, Rhode Island 02816

For Respondent: Harry L. Harper, Esquire

Post Office Drawer 790 Panama City, Florida 32402

STATEMENT OF THE ISSUES

Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.

PRELIMINARY STATEMENT

The Petitioner, Robert G. Harrison, filed a petition for relief from an unlawful employment practice with the Florida Commission on Human Relations around January 24, 1993. The Petition was filed against the Respondent, Beard Equipment Company, Inc. The Commission issued a Notice of Determination, No Cause, on August 10, 1993. On January 27, 1994, the Commission forwarded the petition to the Division of Administrative Hearings.

At the formal hearing, Petitioner testified on his own behalf and offered one exhibit into evidence. Respondent called two witnesses, Al Gunter and Mark Veal and offered Respondent's Request for Admissions numbered one through eight and Respondent's Supplemental Request for Admissions, containing Request for Admission number nine, with attachment, were accepted into evidence and said matters were deemed admitted.

After the hearing, Respondent submitted a Proposed Recommended Order on November 7, 1994. Petitioner did not submit a Proposed Recommended Order but

filed a premature Notice of Appeal. Respondent's Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida.

   
   

2. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle.

   
   

3. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem.

   
   

4. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized.

   
   

5. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction.

   
   

6. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier.

   
   

7. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record.

   
   

8. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992.

   
   

9. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him.

10. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap.

    
    

11. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

13. Section 760.10, Florida Statutes, provides in relevant part:

    
    

    1. It is an unlawful employment practice for an employer:

       1. To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with

          respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

          
          

14. The Act is patterned after Title VII of the Civil Rights Act of 1964,

    42 U.S.C Section 2O0OE-2, and federal case law dealing with Title VII is applicable. Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991).

    
    

15. The Petitioner has the burden of proving a prima facie case of handicap discrimination in violation of the Act. To establish such a case, Petitioner must show:

    
    

    actions taken by the employer from

    which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the Act."

    
    

    Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978); see also,

    McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

16. A prima facia case requires proof by a preponderance of the evidence that an employee was a member of a protected class, was qualified for his position, was discharged, and the job was given to a person outside the protected group. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 450 U.S. 248, 254 (1981).

    
    

17. To state a prima facie case of handicap discrimination, Petitioner must prove that:

    
    

    1. He is handicapped within the meaning of Section 760, Florida Statutes.

    2. He is otherwise qualified for the position; and

    3. He suffered an adverse employment action under circumstances which give rise to an inference that the employment action was based solely on his handicap.

    4. The position was filled or assumed by another person not in a protected class.

    
    

    McDonnell Douglas Corp. v. Green, supra.

    
    

18. Once the Petitioner establishes a prima facia case, a presumption that the employer unlawfully discriminated against the employee is created. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).

    
    

19. In this case, the Petitioner has failed to establish that he is handicapped. Petitioner presented no medical expert testimony that would support a finding that he is mentally handicapped. A handicap is defined by Section 760.22(5), Florida Statutes, as follows:

    
    

    (a) A person has a physical or mental impairment which substantially limits one or more major life activities, or he has a record of having, or is regarded as having, such physical or mental impairment; or

    
    

    Petitioner's bare assertion, unsupported by any expert testimony of such a mental handicap, does not establish by a preponderance of the evidence that he is handicapped.

    
    

20. Additionally, Petitioner failed to demonstrate that the person who replaced him was not a member of a protected class and that Respondent was an employer who employed more than 15 people. Because Petitioner did not present such evidence Petitioner has failed to present a prima facie case of handicap discrimination and the Petition for relief should be dismissed.

    
    

21. However, assuming Petitioner presented a prima facie case, the Respondent may rebut the Petitioner's initial showing by clearly articulating a legitimate, nondiscriminatory reason for its treatment of the Petitioner.

    
    

    [T]he employee's prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this immediate burden the employer need only produce admissible evidence which would allow the

    trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.

    
    

    Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981). The Respondent's burden is one of production. Respondent does not have the burden of persuasion or of proving the factual basis for its explanation. See, McWilliams v. Escambia County School Bd., 658 F.2d, 326, 330-331 (Fla. 5th Cir. 1981).

    
    

22. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. St Mary's Honor Center v. Hicks, 113 S.Ct. at 2747 quoting Burdine,

    450 U.S. at 253. Therefore, once Respondent successfully articulates a reason for its employment action, the Petitioner must prove that the reason offered by the Defendant was merely a pretext to hide a discriminatory motive and that the defendant intentionally discriminated against him because of his handicap. McDonnell Douglas Corp. v. Green, supra, Texas Dept. of Community Affairs v. Burdine, supra, Furnco Construction Corp. v. Waters, supra; St Mary's Honor Center v. Hicks, 113 S.Ct. at 2747 quoting Burdine, supra.

    
    

23. In this case, Petitioner's DUI conviction disqualified him from the position of janitor, due to the driving involved. Respondent had no other position available for which Petitioner was qualified. Business necessity precluded Respondent from allowing Petitioner to drive on company business. Therefore, Respondent had no choice but to terminate Petitioner for a legitimate nondiscriminatory reason. Petitioner did not demonstrate that Respondent's reason for terminating Petitioner was a pretext. Therefore the Petition for Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed.

DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1994.

ENDNOTE

1/ Prior to hearing, Petitioner did have a lay person appointed to represent him as a qualified representative pursuant to Rule 60Q-2008, Florida Administrative Code. However, the qualified representative, with Petitioner's consent, did not appear at the hearing.

APPENDIX TO DOAH CASE NO. 94-794

1. The facts contained in paragraphs 1,2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and

   13 of Respondent's proposed findings of fact are adopted in substance insofar as material.

   
   

2. The facts contained in paragraph 6 of Respondent's proposed findings of fact are subordinate.

COPIES FURNISHED:

Harry L. Harper, Esquire

P. O. Drawer 790

Panama City, Florida 32402

Robert G. Harrison

c/o Ms. Ramona McKenna

291 Hill Street Coventry, RI 02816

Ms. Sharon Moultry Clerk

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road

Tallahassee Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road

Tallahassee Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

================================================================= RESPONDENT'S MOTION TO CORRECT ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

BEFORE THE DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT G. HARRISON,

Petitioner,

1. DOAH Case No: 94-0794

   FCHR Case No: 92-7566

   BEARD EQUIPMENT COMPANY, INC.,

   
   

   Respondent.

   /

   
   

   RESPONDENT'S MOTION TO CORRECT ORDER

   
   

   Respondent, BEARD EQUIPMENT COMPANY, INC., hereby moves the Hearing Officer to enter a corrected Recommended Order and as grounds therefor would state the following:

   
   

   1. On page two, in the last paragraph, under the hearing of PRELIMINARY STATEMENT, the first and second sentences read:

      
      

      After the hearing, Petitioner submitted a Proposed Recommended Order on November 7, 1994. Respondent did not submit a Proposed Recommended Order but filed a premature Notice of Appeal. Petitioner's Proposed Findings... (emphasis added)

      
      

   2. Respondent believes that the words "Petitioner" and "Respondent" have been transposed inadvertently.

   3. Respondent suggest that the passage should read as follow: After the hearing, Respondent submitted a

      Proposed Recommended Order on November 7,

      1994. Petitioner did not submit a Proposed Recommended Order but filed a premature Notice of Appeal. Respondent's Proposed Findings...

      
      

   4. Respondent believes that this was a clerical mistake or error arising from an oversight which is subject to being corrected by the Hearing Officer pursuant to 60Q-2.032, FAC.

      
      

   5. On page three, under FINDINGS OF FACT, paragraph four (4) the first sentence reads as follows:

      Later, Respondent was hospitalized in order to adjust... (emphasis added)

      
      

   6. Respondent believes that the word "Respondent" was used incorrectly and should be replaced with the word "Petitioner" to read as follows:

      
      

      Later, Petitioner was hospitalized in order to adjust...

      
      

   7. Respondent believes that this was a clerical mistake or error arising from an oversight which is subject to being corrected by the Hearing Officer pursuant to 60Q-2.032, FAC.

      
      

   8. The above-styled case is one where the Petitioner alleged an unlawful employment practice because of an alleged handicap.

      
      

   9. Under RECOMMENDATION, the final sentence of the Recommended Order reads as follows:

      
      

      RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his race in violation of the Florida Human Rights Act and that the petition be dismissed. (emphasis added)

      
      

   10. Respondent believes that the use of the word "race" instead of "alleged handicap" was a clerical mistake or error arising from an oversight which is subject to being corrected by the Hearing Officer pursuant to 60Q- 2.032, FAC.

       
       

   11. Respondent suggests the passage should read as follows:

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. (emphasis added)

Respectfully submitted,

Harry L. Harper

P. O. Drawer 790

Panama City, Florida 32402 ATTORNEY FOR RESPONDENT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and one (1) copy of the foregoing has been furnished by U. S. Mail to the Department of Administrative Hearing, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550, five (5) copies to the Florida Commission on Human Relations, 325 John Knox Road, Suite 240, Building F, Tallahassee, FL 32303-4149, and one (1) copy to the Petitioner, Robert G. Harrison, c/o Ms. Ramona McKenna, 291 Hill St., Coventry, RI 02816, this 28th day of December, 1994.

Harry L. Harper

=================================================================

ORDER GRANTING RESPONDENT'S MOTION TO CORRECT RECOMMENDED ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT G. HARRISON, )

)

Petitioner, )

)

vs. ) CASE NO. 94-794

) BEARD EQUIPMENT COMPANY, INC., )

)

Respondent. )

)

ORDER GRANTING RESPONDENT'S MOTION TO CORRECT RECOMMENDED ORDER

This matter came on for consideration on Respondent's Motion to Correct Order, filed December 30, 1994. Upon review and consideration, the motion is GRANTED.

DONE and ORDERED this 9th day of January, 1995, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995.

COPIES FURNISHED:

Harry L. Harper, Esquire

P. O. Drawer 790

Panama City, Florida 32402

Robert G. Harrison

c/o Ms. Ramona McKenna

291 Hill Street Coventry, RI 02816

Ms. Sharon Moultry Clerk

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road

Tallahassee Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations Building F Suite 240

325 John Knox Road

Tallahassee Florida 32303-4149

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

ROBERT G. HARRISON,

Petitioner, EEOC Case No: None FCHR Case No: 92-7566

1. DOAH Case No: 94-0794

   FCHR Order No: 95-041

   BEARD EQUIPMENT COMPANY, INC.,

   
   

   Respondent.

   /

   FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE

   
   

   1. PRELIMINARY MATTERS

      
      

      Robert G. Harrison, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Florida Civil Rights Act of 1992, Sections 760.01-760.11, Florida Statutes (Supp. 1992), alleging that Beard Equipment Company, Inc., Respondent herein, unlawfully discriminated against him on the basis of his handicap (Bipolar Disorder) by terminating him.

      
      

      In accordance with the Commission's rules, the allegations of discrimination were investigated and an investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred. Thereafter, Petitioner filed a Petition for Relief From an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

      
      

      On December 22, 1994, DOAH hearing officer Diane Cleavinger issued a Corrected Recommended Order of Dismissal. Pursuant to notice, public deliberations were held on May 25, 1995 in Tallahassee, Florida, before this Commission, at which deliberations the panel determined the action to be taken upon the Petition for Relief.

      
      

   2. FINDINGS OF FACT

      
      

      We adopt the hearing officer's finding of fact set forth in the Recommended Order as they are supported by competent substantial evidence in the record.

      
      

   3. RULINGS ON EXCEPTIONS

      
      

      Petitioner filed his exceptions in the form of a Request for Appeal. This Request for Appeal is based on the fact that Petitioner believed the Hearing Officer, Diane Cleavinger was assigned to represent him as counsel. He goes on to state that due to his education level and mental/emotional disorder that he did not understand that he was to provide his own counsel. We deny Petitioner's Request for Appeal for the following reasons. Under rule 60Y-4.017(7), unless expressly authorized by the hearing officer, rulings on motions shall not be appealed directly to the Commission, but may be considered by the Commission when it considers the record after issuance of the recommended order. In this case, Petitioner brought his allegations to the attention of the Hearing Officer and requested a continuance for time to subpoena witnesses. The Hearing Officer asked Petitioner what witnesses he would have wanted to be subpoenaed.

      Petitioner stated that he would have had his doctor and counselor testify to the existence of his disability (Bipolar Disorder). Even though the Hearing Officer subsequently found that Petitioner was not handicapped due to the lack of expert testimony, this Commission panel finds that Petitioner did make a prima facie case of handicap discrimination. As such any error by the hearing officer in failing to allow these witnesses to testify is harmless error and does not require remand of the case.

      
      

      Secondly, the issue of Petitioner's misunderstanding as to legal counsel was also addressed by the Hearing Officer. The Hearing Officer considered the matter and ruled that there was no evidence that Petitioner was misinformed by either the Florida Commission on Human Relations or the Division of Administrative Hearings. Subsequently, Petitioner's motion was denied. This

      ruling is within the province of the Hearing Officer and the Commission is not required to rehear the matter on appeal.

      
      

      Finally, Petitioner is in the best position to assess what effect his education and mental/emotional condition plays in his understanding of these procedures. Therefore, it is his responsibility to provide legal counsel if he deems such assistance to be necessary. Accordingly, the Commission panel finds no error in the handling of these issues by the hearing officer and deny Petitioner's exceptions in the form of a Request for Appeal.

      
      

   4. CONCLUSIONS OF LAW

      
      

      While this panel agrees with the factual findings made by the hearing officer, in accordance with the court in Brand v. Florida Power Corp., 633 So.2d 504, 510 (Fla. 1st DCA 1994) that defines a handicapped individual as a person who has a physical or mental impairment which substantially limits one or more major life activities, or he has a record of having, or is regarded as having, such physical or mental impairment, we find that Petitioner did make out a prima facie case of handicap discrimination. Our ruling is also supported by the definition in Duffy v. Sunshine Jr. Stores Inc., 16 FALR 1747, 1753 (FCHR 1994).

      
      

      Petitioner's testimony regarding having bipolar disorder was not supported by expert testimony. The hearing officer states in the Recommended Order that this does not meet the preponderance of the evidence standard. However, the fact that Petitioner testified to his bipolar disorder coupled with Respondent's admission that they knew of the condition and accommodated Petitioner several times when he needed to have his medication adjusted is enough to meet the preponderance of the evidence standard. As such, the hearing officer's conclusion of law stating that Petitioner failed to show that he was handicapped should be stricken and the Commission finds that Petitioner is a qualified individual with a handicap as described under the statute.

      
      

      With this one exception, we agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings. According, we adopt the hearing officer's conclusions of law reflecting the modification above.

      
      

   5. DISMISSAL

The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination are DISMISSED with prejudice.

Each party is advised of the right to petition appropriate the Florida District Court of Appeal for judicial review of this Final Agency Order. Such Notice of Appeal must be filed with the court and the Commission within 30 days of the date that this Order is filed with the clerk of the Commission. Section 120.68, Florida Statutes, and Fla. R. App. P. 9.110(b).

DONE AND ORDERED this 6th day of June, 1995. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

Commissioner Geraldine Thompson, Chairperson Commissioner Chriss Walker

Commissioner Clarethea Brooks

FILED this 13th day of June, 1995 in Tallahassee, Florida.

Sharon Moultry

Clerk the Commission

COPIES FURNISHED:

Robert G. Harrison, Pro Se Sherry Jamison,

502 East Pine Forest Drive Qualified Representative Lynn Haven, Florida 32444 7454 Old Pascagoula Road

Theodore, AL 36582

Harry L. Harper, Esquire Jennifer M. Monrose,

P.O. Drawer 790 FCHR Legal Advisor

291 Hill Street

Panama City, Florida 32402 Diane Cleavinger,

DOAH Hearing Officer

Docket for Case No: 94-000794

Orders for Case No: 94-000794